Case number: 150231, 150277, 150278
1 March 2016
This decision relates to three separate requests submitted by the applicant to UCD for access to various records relating to his studies at a particular School in UCD. As the parties to each review are identical, and given that each review relates to a refusal of access to records by UCD under section 15(1)(g) of the FOI Act, I have decided to consider all three applications together.
Each of the requests were submitted to UCD between 3 May 2015 - 16 May 2015 as follows:
UCD refused all three requests under section 15(1)(g) of the FOI Act on the ground that they each formed part of a pattern of manifestly unreasonable requests. It also cited section 15(1)(a) in relation to case 150277, stating that no records existed or could be found in relation to this request.
The applicant sought an internal review of all three decisions between 4 June 2015 and 29 July 2015. In each case, UCD affirmed its decision to refuse the request under section 15(1)(g). In case 150277 UCD again also relied on section 15(1)(a). The applicant applied to this office for a review of the decision of UCD in each case between 29 July 2015 and 27 August 2015.
During the course of the review, Ms Sandra Murdiff of this Office invited the applicant to make a submission in relation to UCD's refusal of his requests under section 15(1)(g). While the applicant furnished further submissions, he did not make any specific comments in relation to the applicability of section 15(1)(g). Accordingly, I consider that these reviews should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to UCD's decisions on the requests concerned and its communications with this Office, and to the applicant’s communications with this Office and with UCD.
This review is concerned with the question of whether UCD was justified in its decision to refuse the applicant’s requests under section 15(1)(g) of the FOI Act on the ground that they each formed part of a pattern of manifestly unreasonable requests
A request may be refused under section 15(1)(g) where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.
This Office has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious and considers that these factors are equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include;
I have adopted that same approach for the purpose of conducting these reviews.
The FOI requests at issue in this case have their background in a dispute between the applicant and UCD relating to a module of his course of study at UCD. The applicant, in his dealings with this Office, has referred to the "conflict" he has with UCD, (redacted) relating to the events of 20 - 31 October 2014. It is my understanding that he did not successfully complete one module of his course, which took place in October 2014 and, as a result, was not able to graduate with the rest of his class. It is also my understanding that this was the subject of an appeal by him to the UCD Assessment Appeals Office.
In its submissions to this Office, UCD stated that applicant had made 11 requests to UCD in the period 10 December 2014 to 17 May 2015, all of which relate to matters surrounding the dispute. UCD also stated that it was mindful that the Commissioner had stated that the refusal of requests on the basis that they are frivolous or vexations was not something that should be undertaken lightly, and said that it refused requests on this basis very rarely. Furthermore, while the applicant is of the view that UCD has withheld records from him, it stated that all possible efforts have been made to furnish the applicant with records held in relation to him. UCD also stated that he has also been given access to records outside of FOI which might assist him in resolving issues from a number of units in UCD, including from the relevant School, student advisors, Assessment Appeals and UCD Legal Office. UCD also stated that no record located in its searches was withheld and the only redactions from records released to the applicant were of personal information of third parties (under section 37(1) of the Act).
UCD further stated that its decisions to refuse the applicant's requests were made in circumstances where the requester was, apparently using FOI legislation to "frustrate the management of his studies". The applicant has stated that these requests are genuine, fact-finding endeavours on this part. However, UCD stated that while it must assume that the applicant was genuine in his assumption that an interrogation of metadata, etc. was relevant to his academic assessment, in the context of the entirety of his FOI requests and the body of records already provided to him, it considers that the requests are unreasonable. UCD also stated that the applicant accepted its decisions on his FOI requests only on occasions when the nature of the records left no scope for further discussion - e.g. the log of his key card entries to a particular building in UCD.
As I have outlined above, the FOI requests at issue in this case cover records containing metadata relating to email correspondence about the applicant and data relating to records available generally to students on the UCD Blackboard website. I note that these requests seek data relating to particular records, as opposed to seeking specific records. For example, Case No. 150277, seeks the creation, modification and deletion dates of student records held on the Blackboard site, and Cases No. 150231 and 150278 seek metadata relating to emails already released to the applicant. Indeed, these requests appear to take a rather forensic approach to seeking clarification that the records available to him are the unamended originals (150277), or that he had received the entire chain of email correspondence previously requested (150231 and 150278). It is important to note that the FOI Act provides for a right of access to records, as opposed to a right to forensically examine or interrogate the creation, use and management of the information contained therein. It does not require public bodies to provide clarification of any matter that a requester considers to be relevant where the information sought is not contained in a specific record. It is also important to note in this regard that the FOI Act does not require public bodies to create records if none exist.
In relation to the applicant's requests for metadata, while UCD refused these requests under section 15(1)(g) it also stated that it does not consider the requests to be for records within the meaning of the FOI Act. It states that metadata is normally described as information about data, such as html tags, xml tags, database fields, etc. The applicant has stated in his applications to this Office that there was "intentional censorship and omissions" involved in the release of records to him by UCD. The applicant also stated that the metadata would serve to illustrate the authenticity of the times, dates and authors of the email correspondence released. In essence, it appears that he is of the view that not all relevant emails and attachments were released to him in response to his other FOI requests and he is attempting to verify this through an examination of the metadata of the records involved.
I note that the applicant is of the opinion that the metadata can be retrieved quickly and relatively simply, however, UCD's IT Dept has stated that the individual authors of the emails in each case would be required to generate the metadata separately in relation to each email. It stated that it was not in a position to devote the resources necessary to retrieve such data. Furthermore, despite the applicant's assertions, it is not clear to me how the provision of this information would verify to him that all communications he sought had been provided to him, as it would only relate to emails already released to him, not to "other" records which he believes exist. He has stated in correspondence with this Office that "materials can be created to order" and that documents can be created "on the fly". Having regard to these comments, it is my view that release of the metadata concerned would be unlikely to satisfy him that all relevant records had, in fact, been released.
In essence, it seems to me that the applicant has engaged in a pattern of submitting FOI requests with a view to pursuing a dispute that has been ongoing with UCD. The applicant's requests for metadata and document creation dates, etc., appears to me to be an attempt to revisit issues which have already been addressed - i.e. whether UCD released all relevant emails and assessment records, etc. It also seems to me that the FOI Act is being used for a purpose unrelated to the right of access to records, i.e. it is being used as a means of dissecting the information already provided by UCD. Furthermore, in my view, while the applicant's original requests may appear reasonable, the increasingly forensic nature of his subsequent requests go beyond what might be considered reasonable. Having regard to the number of requests made by the applicant relating to the same matters, and to the nature of these requests, I am satisfied that that UCD was justified in deciding to refuse the requests at issue on the ground that they form part of a pattern of manifestly unreasonable requests from the same requester. I find, therefore, that section 15(1)(g) applies.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCD's refusal of the requests concerned under section 15(1)(g) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.